On October 14, 2010, the Indiana Supreme Court approved significant and long-awaited amendments to Indiana’s lawyer advertising rules. They can be reviewed in red-line format showing the deletions from and additions to the current rule at: http://www.in.gov/judiciary/files/rule-amends-2010-prof-conduct-1014.pdf. They will become effective on January 1, 2011. Many of the changes are significant. For the first time, the advertising rules included comments and much of the black-letter content of the existing rules has been relocated into the comments. I will discuss the amendments in detail.

For many years, the Indiana lawyer advertising rules have differed to a great extent from the ABA Model Rules. These recent amendments bring Indiana into closer (but not perfect) alignment with the ABA Model Rules. As such, one assumes that case law interpretation of Model Rule-type language from other jurisdictions might have greater cogency in Indiana than in the past. I have not attempted to make a comprehensive comparison between the Indiana lawyer advertising rules and their ABA Model Rule counterparts in this column.

General Standard: Not False or Misleading

Rule 7.1, previously reserved for future use, now states the general rule that governs all lawyer advertising and publicity. It is worth repeating verbatim: “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.” This is similar to a combination of the first paragraph of existing Rule 7.2(b) and Rule 7.2(c)(1) and (2). Of note, though, is the fact that the current black-letter prohibitions against fraudulent, deceptive, self-laudatory or unfair statements have been removed. Also, Rule 7.1 now includes a “materiality” element that did not previously exist in Rules 7.2 and 7.3.

Much of the content of existing Rule 7.2(c) and (d) has been removed from the black-letter rule and added to the comments to Rule 7.1. Comment [2] to amended Rule 7.1 advises of a number of situations that will be considered violations “[i]n the absence of special circumstances that serve to protect the probable targets of a communication from being misled or deceived.” Those situations include: (1) promoting actions merely to harass or maliciously injure another (compare existing Rule 7.2(d)(1)); (2) use of statistical data or information based on past performance or “express or implied” predictions of future success (compare Rule 7.2(d)(2), which does not contain “express or implied” modifiers); (3) claims by a third party that the lawyer could not personally make (no existing counterpart); (4) appealing primarily to fear, greed, or desire for revenge (compare Rule 7.2(d)(5), which now adds “or similar emotion”); (5) comparison of services with other lawyers’ services “unless the comparison can be factually substantiated (no existing counterpart); (6) refers to results obtained “that may reasonably create an expectation of similar results in future matters (no existing counterpart); (7) “contains a dramatization or re-creation of events unless the advertising clearly and conspicuously discloses that a dramatization or re-creation is being presented” (no existing counterpart); (8) “contains a representation, testimonial, or endorsement of a lawyer or other statement that, in light of all the circumstances, is intended or is likely to create an unjustified expectation about a lawyer or law firm or a person’s legal rights” (similar to Rule 7.2(d)(3), except the existing rule prohibits all testimonials or endorsements); (9) claims specialist status unless properly certified (compare Rule 7.2(c)(4)); and (10) claims prohibited by Rule 7.3 (compare Rule 7.2(d)(6)).

The language dealing with testimonials and endorsements in Comment [2](8) to Rule 7.1 is of particular interest. Currently, testimonials and endorsements are outright prohibited. This new language suggests that testimonials and endorsements are now permitted within limits. Certainly one limitation is found in Comment [2](3) to Rule 7.1, which provides that a lawyer cannot incorporate a statement about the lawyer by a third party that the lawyer could not make directly. Where the line will be drawn is an open question, but judicious use of testimonials or endorsements, perhaps with an appropriate disclaimer, will apparently be allowed after January 1.

Limitations on Lawyer Advertising

Amended Rule 7.2 deals more specifically with advertising than general lawyer publicity, but all advertising must still comply with the general concepts of Rule 7.1. Amended Rule 7.2(a) retains the general statement that if otherwise compliant with the Rules of Professional Conduct, advertising is permitted. That grant of permission is somewhat superfluous, given that lawyer advertising is commercial speech that enjoys a degree of First Amendment protection. See Bates v. State Bar of Arizona, 433 U.S. 350 (1977) and its progeny.

Amended Rule 7.2(a) expands that permission to include “law related services.” This implies that law related services must comply with the lawyer advertising rules. This is true as a general proposition, but it is worth pointing out that law related services can be structured to operate with sufficient distinctness from a lawyer’s law practice that the rules regulating lawyer advertising will not apply. See generally 5.7. Be forewarned, though, that this is quite technical and should be considered very carefully before concluding that lawyer advertising rules do not apply to the rendering of law related services.

Unlike before, we now have a definition of what constitutes advertising: “[A]ny manner of public communication partly or entirely intended or expected to promote the purchase or use of the professional services of a lawyer, law firm, or any employee of either involving the practice of law or law-related services.” Amended Rule 7.2(a). Comment [1] to Rule 7.2 contains some additional language that might shed some light on how the rules governing advertising will be interpreted: “Advertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele.” This statement suggests that communications that are not an “active quest” for clients, such as statements on a website that are passive and only accessible when a potential clients makes an affirmative choice to visit the website, are governed only by Rule 7.1, not Rule 7.2. For the most part, this is a distinction without a difference, since Comment [1] to Rule 7.1 states that the Rule 7.1 governs “all communications about a lawyer’s services, including advertising permitted by Rule 7.2.”

Existing Rule 7.2(b) includes a list of examples of permissible components of lawyer advertising. This list has been moved into the comments to that rule and expanded somewhat. One new addition to the list of permissible subjects is description of “professional liability insurance coverage.” Note that this is a non-exclusive list of examples of permissible advertising and does not preclude other advertising content that does not otherwise violate the rules.

Amended Rule 7.2(b) contains substantially new language that generally prohibits giving anything of value to anyone for recommending or advertising the lawyer’s services, with exceptions for (1) paying the reasonable costs of advertising and publicity, (2) paying the usual charges for participation in a legal service plan or a qualified lawyer referral service, (3) paying to purchase a law practice consistent with Rule 1.17, and (4) referring “clients to another lawyer or a non-lawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if (i) the reciprocal referral agreement is not exclusive, and (ii) the client is informed of the existence and nature of the agreement.”

Item (1) is largely a restatement of similar language in current Rule 7.3(f), which has been retained in amended Rule 7.3(e). Likewise, items (2) and (3), while new, do little more than restate what is permitted elsewhere in the Rules of Professional Conduct. Item (4) is new and was taken from the equivalently numbered ABA Model Rule of Professional Conduct. It indicates that lawyers may enter into mutual referral agreements with other lawyers and non-lawyer professionals so long as they are not exclusive and the client is informed about the agreement. Curiously, the ABA Model Rule includes an explanatory comment about this language, but the amended Indiana rule does not.

It is interesting, but perhaps not significant, that the following language that appears in current Rule 7.2(e) has been eliminated: “A lawyer shall not compensate or give anything of value to a representative of the press, radio, television, or other communication medium in anticipation of or in return for professional publicity in a news item. An advertisement must be identified as such unless it is apparent from the context that it is an advertisement.” I suggest that there is likely no significance to the elimination of this language since one assumes that journalist ethics would preclude receiving such payment in any event and that it would be considered false or misleading advertising to dress up an commercial advertisement as something else.

Limitations on Client Solicitation

Rule 7.3 continues to regulate solicitation of clients by means other than general advertising. This includes direct prospective client contact by any means. A new exception for “close personal relationships” has been added to the current exception for solicitation of other lawyers or non-lawyers with whom the solicitor has a family or prior professional relationship. There is no definition of what constitutes a close personal relationship.

Solicitation restrictions apply “when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain.” This is, in effect, a codification of the long-standing expanded constitutional protection for cause-driven solicitation of clients. See In re Primus, 436 U.S. 412 (1978).

There are some new special solicitation prohibitions that are significant. Amended Rule 7.3(b)(3) creates a 30-day cooling off period before victims of accidents and disasters or their relatives may be solicited. This is a brand new restriction in Indiana, but it should be noted that the U.S. Supreme Court upheld the constitutionality of a similar Florida rule in Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995).

Another new and significant prohibition found in amended Rule 7.3(b)(4) is against soliciting a prospective client who the solicitor “knows, or reasonably should know … is represented by a lawyer in the [specific] matter.” This is a very significant change and raises important concerns about the practice of broadly soliciting individuals who have been sued using targeted solicitation letters without determining if the targeted individual is already represented by counsel. What is especially curious about this prohibition is that it seems to be more directed at protecting lawyer economic interests than protecting the public or the administration of justice. Lest one think that this conduct is already prohibited by Rule 4.2, it is worth noting that the traditional prohibition under Rule 4.2 against contacting a represented person on behalf of a client was never intended to apply to lawyers who contact prospective clients who might already represented by counsel.

Finally, there is a new prohibition in amended Rule 7.3(b)(5) against soliciting a prospective client if it is known or reasonably should be known that the person’s “physical, emotional or mental state makes it unlikely that the person would exercise reasonable judgment in employing a lawyer.”

There is an especially interesting new Comment [5] to Rule 7.3: “Moreover, if after sending a letter or other communication to a client as permitted by Rule 7.2, the lawyer receives no response, any further effort to communicate with the prospective client may violate the provisions of Rule 7.3(b).” The suggestion here is that follow-up targeted solicitation communications may be viewed as harassing in nature if an initial communication does not bear fruit.

Lawyer Specialization

Rule 7.4 will continue to deal with communications about lawyer specialization. Substantively, little has changed. Lawyers may only make claims of specialization if they are properly certified under the provisions of Admission and Discipline Rule 30. One noteworthy change, though, is the elimination of the following language from Rule 7.4(a): “… but may not express or imply any particular expertise except as otherwise provided in Rule 7.4(b).” While claims of expertise are no longer explicitly prohibited, any such claims will still need to comport with the general requirements of Rule 7.1 and, if stated in the context of an advertisement, Rule 7.2. Also, amended Rule 7.4(d)(2) requires that claims of specialization must identify the certifying organization that supports the ability to make the claim.

Law Firm Names

Rule 7.5 will continue to govern how law firms identify themselves. The amended rule now usefully mentions that law firms practicing in the form of limited liability entities should be aware of the registration requirements of Admission and Discipline Rule 27.

Amended Rule 7.5(a)(4) will permit the use of trade names, but in such a restricted manner that it is of limited significance. No trade name may imply a connection with a government agency or charitable legal services organization. Any law firm name must include the name of at least one lawyer (current, deceased or retired). And the name may not include any other words than the name of one or more lawyers, except references to (1) the field of law the firm concentrates in, (2) a law firm’s geographical location, or (3) a language fluency. These seem to be consumer friendly changes. They allow prospective clients to determine at a glance whether it is worthwhile to contact a particular firm about a legal matter. If read literally, with the exception of the information noted above, no other words than lawyer names are permitted. That can’t be. What about descriptive words like, “The Law Office of…” or “Attorney at Law?” Surely they are allowed.

Comment [1] to Rule 7.5 states: “A lawyer or law firm may also be designated by a distinctive website address or comparable professional designation.” This appears to allow lawyers to use domain names that differ from their firm names. But, of course, the domain name must not in any other respect violated the general prohibitions in Rules 7.1 and 7.2 governing advertising and other communications concerning a lawyer’s services.

Finally, there is a new Rule 7.5(d) that is similar to current Rule 7.5(c), but its potential significance is driven home by a comment. Rule 7.5(c) now states: “A lawyer shall not hold himself out as having a partnership with one or more other lawyers unless they are in fact partners.” New Rule 7.5(d) states: “Lawyers may state or imply that they practice in a partnership or other organization only when they in fact do so.” Comment [2] states: “With regard to paragraph (d), lawyers sharing office facilities, but who are not in fact associated with each other in a law firm, may not denominate themselves as, for example, “Smith and Jones,” for that title suggests that they are practicing together in a firm.” Taken together, this language raises serious doubt that lawyers who share office space, but are not partners or otherwise associated together in the form of a legal entity, may use a law firm-like name, even with a disclaimer such as: “An association of attorneys, not a partnership.”

Conclusion

Indiana has traditionally been a conservative lawyer advertising environment. There are no clear signals in these amendments that this has dramatically changed. At the margins, however, there are indications that some approaches to lawyer publicity and advertising that were traditionally prohibited may now be available within fairly constrained limits. A lot will be left to the enforcement philosophy of the Disciplinary Commission and the Supreme Court’s own reaction to the cases that come before it. Until then, lawyers will have as few bright lines to govern their decisions about lawyer advertising as they do now. Caution is still the watchword in the Hoosier state.